BY MARK CURRIDEN

Diane Leininger is no maverick or activist. At 50, she works as an interior designer, while her husband is a salesman for a pharmaceutical company. They live in the quiet Florida coastal town of Delray Beach.

But on Jan. 4, 2000, Leininger and five other Palm Beach County citizens decided that they had seen enough and were determined to send a message they hoped would dramatically change how health care is administered in this country.

For more than a month, Leininger was a juror in a case in which the parents of 9-year-old Caitlyn Chipps, who suffered from cerebral palsy, sued their insurance carrier, Humana Health Care, for repeatedly denying payment for their daughter’s treatments.

“We were stunned by the testimony,” Leininger says. “The company sent bonus checks to claims reviewers who saved the company money by denying the most medical claims for patients. And the company made its claims process so egregious and difficult just to increase their chances that families would eventually give up seeking reimbursement for treatments rather than continuing to fight to get their money.”

The most disturbing revelation, according to Leininger, was that this practice wasn’t unique to Humana but rather a course of conduct for many major health maintenance organizations.

“That’s when we decided we had to send a message that would get not only Humana’s attention but the attention of every HMO out there,” she says.

Their verdict: $79.6 million, the largest damage award ever handed down in an individual case in Palm Beach County.

A spokeswoman for Humana called the verdict “erroneous and excessive.” The company is appealing the judgment.

Legal analysts say the Humana jury reflects a growing trend among jurors to use their power to demand societal changes that reach far beyond the specific case in which they are involved.

During the past two decades, the clout of the American jury and the authority it wields have grown to historic levels, according to judges, lawyers and law professors.

Like no time before, the 12 people seated in the jury box regularly demonstrate an increasing willingness—even a clamoring—to force basic American institutions, such as government, business and even private social organizations, to change the way they operate.

Trial lawyers and state attorneys general, recognizing the new pro-active attitude, are capitalizing on the trend by asking juries to use individual cases to make monumental decisions that impact entire industries or even establish de facto public policy, legal experts say.

A Really Hard Line

Consider these recent examples:

• Last year, a jury in Miami issued a $144 billion punitive damage verdict against the major tobacco companies. The jurors said their verdict was designed to force the cigarette makers to change how they do business or go bankrupt.

• Jurors in Canton, Texas, handed down a $23.3 million judgment in August 1999 against pharmaceutical maker American Home Products for withholding evidence about the dangers of the diet drug Fen-phen. Following the decision, jurors said they wanted pharmaceutical companies to change their policies regarding disclosure of health risks to the public. The verdict led to a national, multibillion dollar settlement.

• A New York jury in 1999 told 15 U.S. gun makers to pay the families of seven crime victims $560,000. The panel found that the companies intentionally marketed their products in a way that they should have known would promote illegal gun distribution. While the verdict is on appeal, it fueled dozens of similar lawsuits still pending. It also convinced manufacturer Smith & Wesson to reach a settlement in its cases by agreeing to historic changes in the way it does business.

• In 1998, a Dallas jury awarded the family of a young child $62 million after the family’s medical insurer, an HMO, refused to pay for needed medical care. Members of the jury said the award was designed to tell HMOs they must stop putting profits ahead of medical care.

• Similarly, in January 2000, a West Palm Beach, Fla., jury ordered Humana Inc. to pay $80 million in punitive damages to the family of a 9-year-old girl with cerebral palsy after the HMO denied doctor-recommended treatments for her. Lawyers in the litigation viewed the verdict as an indicator that the public is unhappy with the status of managed care and health insurance.

“Our founding fathers would be stunned and dismayed to learn of the issues that today’s juries are deciding,” says Frank Newton, dean of the Texas Tech University School of Law.

“Are guns unsafe? Are HMOs putting profits ahead of health? Are police using racial profiling in drug stops? Are our schools and churches doing enough to protect our children? Are our nursing homes properly treating our grandparents?”

Newton and other legal experts say that each of these cases involved major public policy questions that Congress and state legislatures failed to address. Frustrated by the lack of action, activists have taken their causes to court seeking relief from what they hope will be sympathetic juries.

And legal analysts say the 12 people in the jury box are frequently identifying with the activists and issuing verdicts that they believe will lead to change.

“I think we are witnessing the emergence of an activist jury pool,” says University of Georgia law professor Ron Carlson. “People are frustrated by the inaction of the other branches of government and realize that, as jurors, they hold incredible powers of change and they are ready and willing to wield them.

“Juries have always held immense power in our system of self-government, but only in recent years have jurors learned to use it,” says Carlson.

A 16-month study by The Dallas Morning News and the Southern Methodist University Law Review identified more than 700 cases since 1990 in which jurors stated publicly that they intended their verdicts to have impact beyond their individual cases.

Between 1970 and 1990, the study found fewer than 100 such cases. In the 70 years prior, researchers identified only 17 cases in which jurors indicated they wanted their verdicts to have some kind of broader influence.

In addition, a survey of nearly 1,000 trial judges in Texas and federal judges nationwide by the Morning News and the SMU Law Review found that nearly half have had cases in which jurors used their verdict to send a message about a broader issue.

“Today’s jurors come to court angry and full of biases, and they are exacting revenge,” says Victor Schwartz, a nationally recognized litigation expert and general counsel of the American Tort Reform Association. “I don’t like it and don’t think that it’s healthy, but there’s no question it’s happening.”

DePaul University law professor Stephen Landsman, an expert on the role of the jury in American culture, agrees that deciding social and public policy through jury verdicts is a lousy way of governing.

“Juries are so unpredictable and cumbersome,” he says. “Yet, when no one else has the courage to address the truly controversial issues and problems of our time, juries over and over have shown a willingness and ability to roll up their sleeves, study the facts and come to conclusions.”

No Rational Basis

Even so, leaders of corporate America say that we are asking too much of jurors to decide issues that even scientists disagree on.

“We are now asking ignorant juries to make decisions on which scientists make the most sense,” says William Lytton, general counsel and senior vice president at International Paper. “Does smoking cause cancer? Do silicone implants cause disease? Do electric power lines emit radiation and cause cancer?

“Juries are the least informed, the least represented and the least qualified body to determine public policy,” he says. “For 12 people to put Philip Morris out of business, what is next? Will 12 people decide fatty foods are inappropriate and put McDonalds out of business? That is a very undemocratic and potentially dangerous result.”

Harvard law professor E. Kip Viscusi, who specializes in economics, argues that those jurors who punish companies via punitive damage awards actually have little or no positive impact on society.

In a recent study funded by Exxon, Viscusi found no safety or environmental differences between states that allow punitive damages and states that don’t.

“Thus, there is no deterrence benefit that justifies the chaos and economic disruption inflicted by punitive damages,” he wrote.

However, the Morning News and the SMU Law Review study identified more than 250 cases in which jury verdicts led to some change.

Those changes ranged from corporations recalling potentially dangerous products and manufactur-ers modifying how they dispose of waste, to businesses reforming how they treat their employees and police departments rewriting rules on car chases and excessive force.

“Don’t tell me that juries don’t make a difference, because the evidence contradicts that,” says Stephen Daniels, a research fellow for the American Bar Foundation. “The anecdotal evidence is pretty overwhelming.”

Daniels and other analysts point to the Dalkon Shield, the Ford Pinto, asbestos, Fen-phen and other products that companies have removed from the marketplace or fixed following jury verdicts.

True, trial lawyers have long asked juries to use their verdicts to send messages. But legal historians say that prior to the 1980s, those pleas mostly fell on deaf ears.

“There have been scattered jury verdicts throughout history where jurors were outraged and sent some political message,” says Bill Nelson, an expert on the history of the American jury system and a law professor at New York University. “But those traditionally have been few and far between,” he says. “Until now.”

Nullification in Order

Most of the early examples of jurors demonstrating their independence came in so-called jury nullification in criminal cases involving William Penn in England or John Peter Zenger in New York. In those matters, jurors simply refused to find people guilty if they didn’t like the law or felt law enforcement was overreaching.

But the practice is even more widespread today. For example, jurors in Atlanta in the mid-1990s started acquitting sports bookmaking defendants on a regular basis, even though such cases were usually slam dunks. In post-trial interviews, jurors said they saw no moral difference between sports betting and playing the Georgia lottery.

In Dallas, jurors started digging in their heels in 1999 in cases involving lewd dancing. The revolt began, according to lawyers, in a case in which there was little doubt that the women had danced closer to patrons than allowed by law.

The jury in one case publicly criticized police for wasting taxpayers’ money investigating and prosecuting what amounted to victimless crimes. The jurors’ statements made news and soon other juries in similar cases were refusing to convict.

“Now, when a dancer decides to fight these cases to a jury, they almost always win,” says Houston lawyer Mike Maness. “It’s absolutely a case of jurors telling police this is not appropriate public policy.”

Tom Charron, director of the National District Attorneys Advocacy Center, says jury nullification isn’t always bad. He says there are thousands of outdated laws still on the books that could and might still be prosecuted were it not for the willingness of jurors to refuse to convict.

“Today’s jurors are not used to being told what to do,” Charron says. “They take their personal beliefs into the jury room and they are more willing to act on those beliefs.”

The first significant example of jurors sending a message in a civil case surfaced in 1962. Texan John Henry Faulk, a famous radio and television personality, sued when he was blacklisted after being identified by Aware Inc., a political action group, as being sympathetic to communism.

A New York jury ordered Aware to pay Faulk $3.5 million, which at the time was the largest damage award in history. The jury’s verdict effectively put Aware out of business and ended institutional blacklisting by those who claimed to be experts on communism.

Legal analysts say the real trend toward juror activism in political, cultural and social issues had its birth in Jackson, Miss., in 1982.

That’s when East Texas trial lawyer Scottie Baldwin sued an asbestos maker for a client’s lung disease. There had been scores of previous suits against the makers of asbestos, but most jurors had awarded only small damages to plaintiffs or found in favor of the defendants.

But this time, jurors reacted angrily to evidence of intentional misconduct by the corporate defendants Johns-Mansville and Raybestos-Manhattan. The panel awarded $1 million in punitive damages to James Jackson of Pascagoula.

The verdict spawned thousands more lawsuits and prompted Chief Justice William H. Rehnquist to ask Congress to take action. When that didn’t happen, jury verdicts continued to pour in and billion-dollar companies were forced out of business.

Then came tobacco. As with asbestos, juries declined to punish cigarette makers for decades. The tide turned in August 1996 when a jury in Jacksonville, Fla., heard the case of Grady Carter, who developed lung cancer after 44 years of smoking Lucky Strike cigarettes.

The jury, after hearing evidence that the industry had conspired for decades to lie about the dangers of smoking, found the cigarettes were “unreasonably dangerous and defective” and ordered Brown & Williamson Tobacco Co. to pay $750,000. The company paid that judgment to Carter in March 2001 after the Florida Supreme Court upheld the jury’s decision.

While tobacco giants Philip Morris and R.J. Reynolds weren’t defendants in that suit, officials at both companies say the jury’s decision resonated throughout their corporate offices.

“It was definitely a wake-up call,” says Philip Morris vice president Steve Parrish.

After winning every jury trial for four decades, suddenly the gates opened.

“If you have a defective product, and you know it’s defective and kills people but you keep selling it because people are addicted to it and it makes you billions of dollars, then that is just pathetic,” says Michael Criscola. Criscola is a pizza parlor operator and the foreman of a San Francisco jury that slapped Philip Morris and R.J. Reynolds tobacco companies with a $20 million judgment in March.

“I found it shocking that these companies behaved in such a disgraceful manner and that the government has allowed them to get away with it,” he says.

In the Miami case that resulted in the $144 billion verdict, lawyers for the industry told jurors in closing arguments that the tobacco companies got the message from other jury verdicts over the past four years.

The lawyers told the jury that because of those earlier verdicts, they had reformed how they do business and that they don’t need to be punished any more.

“It’s a startling admission from a powerful industry that jury verdicts do have an impact and can induce substantial changes,” says University of Wisconsin law professor Marc Galanter. He says it was the fear of juries that sparked the tobacco indus- try to settle lawsuits brought by 41 state attor- neys general for $246 billion.

Similarly, lawyers for gun manufacturer Smith & Wesson say it was a jury verdict last year that led it to agree to historic changes in how it does business.

The case involved the families of seven shooting victims who sued 25 gun makers for negligence in marketing their products in a manner that fueled illegal gun trading.

The Brooklyn jury deliberated for nearly a week, debating internally how their verdict would be viewed by the public.

On Feb. 11, 1999, the jurors returned a judgment of $560,000 against 15 of 25 gun manufacturers—the first such verdict in the nation. The verdict is on appeal.

“We really debated wheth.er it was our job to send some message,” says a Brooklyn man who served on the jury. “In the end, we decided, if not us, who? Nobody else was saying this is wrong and we believed it was wrong.”

Spurred by the jury’s decision, some 24 cities subsequently sued the gun makers making the same allegations. Some of those suits are expected to be presented to juries in the next year.

Even though Smith & Wesson was one of the 10 companies found not liable by the jury, lawyers for the gun maker say the jury’s verdict emphasized just how vulnerable the industry is.

They privately admit that the Brooklyn jury was a major contributing factor in the company’s decision to settle its lawsuits with a handful of cities.

Following the Brooklyn verdict, a few jurors explained their unhappiness to the lawyers for the gun makers.

“We told them our verdict expressed our opinion that the industry is not being as responsible as it should be,” says one juror, who asked not to be identified.

Indeed, judges say that jur- ors are increasingly sending written messages with their monetary awards that seek to encourage some kind of reform.

That’s exactly what happened on July 24, 1997, in a fourth floor Dallas courtroom. Jurors heard several weeks of testimony that leaders of the Dallas Catholic Diocese knew for years that one of its priests was sexually abusing young parishioners but did nothing about it.

In the deliberation room, the jurors decided they needed to send two messages—just to make sure their voice was heard clearly.

The first statement came in the form of a $119.6 million judgment against the church. But then the jurors issued a letter they read in open court in front of the bishop and the news media.

The note said that the church needed to make “significant changes to [its] policies in regard to child abuse.”

“Just in case the diocese didn’t understand exactly what message we were sending through the $119 million verdict, we decided to make it extra clear to them,” says presiding juror Susan Koons, a 55-year-old housewife who delivered the message from her seat in the jury box.

Never Again

“We wanted to say to the religious community—but especially to the Catholic Diocese—that this must stop and never be allowed to happen again,” says Koons.

“The message we intended to send was not just meant for the Dallas Catholic Diocese but for church-es everywhere—that they are not properly supervising their priests and pastors,” Koons says.

Lawyers in the case agree that the jury’s verdict led to substantial reforms within the church. The verdict also led prosecutors to file criminal charges against the priest. The civil case settled a few months after the judgment.

“Changes have been made,” says Randal Mathis, a Dallas lawyer who defended the diocese. “There is absolutely no doubt that the diocese received the jury’s message very, very clearly.”

As for Koons, she hopes the verdict caused other churches and private groups that deal with kids on a regular basis to re-examine their policies regarding child abuse.

“Every day, I look in the newspaper for two things: I look in the obituaries to see if one of those poor kids has killed himself, and I scour the paper to see if any other churches are having similar problems.

“I pray that pastors and priests and rabbis remember our verdict and work hard to make sure this never happens again,” she says.

Impetus for Change

A study by The Dallas Morning News and the Southern Methodist University Law Review last year identified more than 250 cases where a jury verdict prompted some form of corporate, governmental or societal change. Here is a sampling of those cases over the past two decades:

• An $8.8 million jury verdict in 1994 led Johnson & Johnson to put warning labels on Tylenol disclosing that mixing the drug with alcohol can cause liver problems.

• In 1993, a jury ordered Kubota to pay $3.3 million for making a tractor that frequently flipped over. The company recalled the tractor after the jury’s decision.

• Days after a jury in 1996 ordered American Airlines to pay $20 million because its electronic billboards on the highway leading to the Dallas-Fort Worth airport were found to be extremely dangerous for motorists, the airline took down the billboards.

• Eli Lilly in 1985 removed an arthritis pain-relief medication from the market after a jury issued a $6 million judgment against the pharmaceutical company for failing to inform physicians that the drug caused fatal kidney and liver problems in some people.

• A jury in 1980 issued a $1 million judgment against Dayton Hudson for making children’s pajamas that frequently caught fire when too close to heating devices. Following the verdict, the company stopped making the clothes.

• In 1986, the Bassett Furniture Co. recalled thousands of cribs after a jury awarded $475,000 because several infants accidentally hanged themselves on the headboard.